Specter's Judiciary "Swan Song"

Here’s more on another Repug mess for the incoming Democratic congress to try and clean up.

As noted in this Inquirer article, Arlen Specter, soon-to-be-former head of the Senate Judiciary Committee, is basically washing his hands of the domestic spying mess that he and his fellow Repugs helped exacerbate by refusing to hold Bushco accountable to existing FISA law from 1978.

"I think it would be ideal to have congressional oversight on the program in detail, and I look forward to what will happen next year," he told an American Bar Association gathering. "I have grave reservations as to how successful we will be, given the administration's unwillingness to share those secrets."

Specter states in the article that he’s pessimistic that the Democrats will be able to be able to come up with a solution, and I think he’s right, since the only “solution” that Bushco will consider is one in which they obtain total power to basically bypass congressional oversight.

However, the quote that grabbed my attention from the Inquirer story is this one…

Specter said FBI Director Robert Mueller would testify before his panel Wednesday on whether law enforcement and intelligence agencies are sharing information.

The 9/11 terrorist attacks "could have been prevented if the CIA and the FBI had communicated," Specter asserted.

Well, well.

So THERE’s the answer, huh, Senator “Two-Step”? (step towards the left, then step towards the right…)

It wasn’t that Bushco ignored the warnings of Richard Clarke and treated the August 6, 2001 brief with the screaming title of “Bin Laden Determined To Strike In US” as “a historical document,” was it? Not much.

So, then, what does that say? We invaded a country that had nothing to do with 9/11 now or ever because of administrative incompetence between our intelligence agencies?

Oh, but it didn’t involved alleged fellatio or a stain on a blue dress, so it wasn’t worth investigating, was it now (and when I say “investigating,” I mean something besides that stupid whitewash of a hearing held by Pat Roberts, in which the pre-9/11 portion of the investigation, the part that would have made Bush look REALLY bad, was held after the November 2004 election).

Well, to the great credit of many people in this country, they responded to that on November 7th.

Also concerning Specter, Jeffrey Toobin of The New Yorker wrote an interesting article last week about how our Senator from PA helped kill habeas corpus as part of the Military Commissions Act passed in September.

As Toobin noted, Bushco has always been on shaky legal ground concerning their denial of habeas corpus, being overruled by the Supreme Court in Rasul v. Bush and Hamdan v. Rumsfeld. As the story notes…

“…the Court again rejected the White House’s position, ruling, in Hamdan v. Rumsfeld, that Congress, and not just the President, must establish the rules for trying the prisoners. The decision in Hamdan was announced on June 29, 2006, and Specter had been waiting for it. ‘I pretty much knew what it was going to say, or thought I did. And we had legislation all ready to go,’ Specter told me. ‘It came down in the morning, and I introduced the legislation in the afternoon.’”

However, Specter’s amendment to the bill that would have ensured habeas corpus rights was defeated, and…

In the chaotic few days before the vote, the Administration’s allies in the Senate had toughened the habeas provision of the law. The bill had originally applied only to alleged enemy combatants who were held at Guantánamo. The final version stated that any alien (that is, non-American citizen) who had been seized anywhere and charged with being an enemy combatant would be denied the right to petition for habeas corpus. The definition of “enemy combatant” was also expanded, to include not just those who took up arms but financial supporters of the terrorist cause as well. Accordingly, the bill made clear that aliens arrested in the United States and charged with knowingly giving money to an alleged terrorist organization would be forbidden to sue for their freedom.

Nevertheless, on September 28th, Specter joined all his Republican colleagues (except Lincoln Chafee) in voting for the Military Commissions Act, which passed by a vote of sixty-five to thirty-four. President Bush signed the law on October 17th, and the next day the government began filing court papers asking for the dismissal of all the petitions for habeas corpus filed by detainees at Guantánamo Bay.

It is hard to believe that the Arlen Specter of the nineteen-eighties—the maverick who defied his party on an issue of the magnitude of the Bork nomination—would have considered yielding on a question as fundamental as habeas corpus. “I was madder than hell when the habeas-corpus amendment went down and was a little hot and spoke prematurely on the vote,” Specter told me. “If we had not passed the bill, we would be going on into next year without having a procedure to try these people.” Thus, he said, he felt obligated to vote for the bill.

(By the way, as Atrios noted again today, Jose Padilla is being held as an enemy combatant, and he just happens to be an American citizen...probably not a very honorable one, but a citizen all the same.)

Update 12/5: Glenn Greenwald, via Atrios, has a great post here on Padilla and lapdog media complicity in all things Bushco (maybe his best, as far as I'm concerned).

Why, in this case, is a bad bill better than no bill at all? Besides…

Of course, Specter’s vote on habeas, like his support of Roberts and Alito, forestalled another possible conservative revolt against his chairmanship (which, in the event, the election cost him). Specter is hoping the courts will restore the rights of the detainees to bring habeas cases. “The bill was severable. It has a severability clause. And I think the courts will invalidate it,” he told me. “They’re not going to give up authority to decide habeas-corpus cases, not a chance.” Others are less sure.

“It’s a pretty odd position for Specter to take,” (Akhil Reed ) Amar, of Yale Law School, said. “He trusts the courts to take care of a problem when he’s voting for something that strips them of their jurisdiction to do it. It’s like saying, ‘I shot at her, but I knew I was going to miss.’ Still, he may be right. The Court might strike it down.” According to Amar, the election that cost Specter so much of his clout makes it more likely that his legal position will ultimately be vindicated on habeas corpus.

Nice job, Arlen. Hope and pray that the courts settle this mess, huh? What bold, "moderate" leadership!

Of course, giving Bushco want it wants on habeas corpus is totally “in character” for the about-to-expire 109th Congress. As incoming judiciary chairman Patrick Leahy noted in the article…

“When Lyndon Johnson became Vice-President, he wasn’t welcome at Senate Democratic caucus meetings anymore, because it was for senators only,” Patrick Leahy, the ranking Democrat on the Judiciary Committee, told me. “But every Tuesday since Bush has been President it’s been like a Mafia funeral around here. There are, like, fifteen cars with lights and sirens, and Cheney and Karl Rove come to the Republican caucus meetings and tell those guys what to do. It’s all ‘Yes, sir, yes, sir.’ I bet there is not a lot of dissent that goes on in that room. In thirty-two years in the Senate, I have never seen a Congress roll over and play dead like this one.”

And, God willing (along with all of our best efforts), we never will again.

Update 12/12: OK, I give Specter (and Leahy) credit after all.